Wrongful life
By Wendy McElroy
web posted March 25, 2002
A new legal industry is arising to enrich lawyers, clog the court
systems and further saturate society with litigation. It revolves
around the concepts of "wrongful birth" and "wrongful life."
In "wrongful birth," the parents of a disabled child initiate a
lawsuit, typically against a doctor who is accused of not
performing proper genetic screening or not adequately
counseling prospective parents. The essence of wrongful birth is
that the defendant's negligence resulted in the birth of a disabled
child whom the mother would have aborted had she received
adequate medical information.
In "wrongful life," the disabled child — or those acting on the
child's behalf — sues for being alive. Sometimes, the parents
become defendants. In essence, the child claims he/she was
damaged by being born and should be compensated.
The difference between wrongful birth and wrongful life is largely
that, in the latter, the money is awarded directly to the child, not
the parents, thus providing for his or her future needs.
Wrongful birth is becoming widely accepted as a valid legal
category: wrongful life still encounters stiff resistance. A Web site
that provides legal resources on "wrongful birth/life" advises,
"Currently [no date given], over twenty-five U.S. jurisdictions
recognize an action for wrongful birth and three jurisdictions
recognize actions for wrongful life."
In reaction to wrongful life/birth suits, states are considering and
sometimes creating new laws. Law firms are gearing up to handle
the new business. For example, the New Jersey law firm Blume
Goldfaden expects these suits to increase as "prenatal testing
becomes even more accurate in detecting serious birth defects."
The level of recent settlements listed by Blume Goldfaden — $2
million, $1.5 million and 1.2 million — will also encourage
litigation.
Those involved in wrongful birth/life suits seem unusually candid
about wanting money. For example, in early 2000, Patricia and
Lawrence Hester asked the Ohio Supreme Court to allow them
to bring a wrongful life suit on behalf of their disabled daughter,
Alicia. Their doctors allegedly did not inform them of prenatal
tests that revealed a high possibility of spina bifida in the fetus.
(Had the Hesters known, Alicia would have been aborted: thus a
wrongful birth suit was brought simultaneously.) The Hesters
wanted the doctors to compensate Alicia for her suffering and
for financial costs, such as special education and medical care,
during her lifetime. By a narrow margin of four-to-three, the
Supreme Court voted against admitting the wrongful life case.
Not just individual states but also nations are grappling with the
new litigious implications of genetic screening and prenatal
diagnosis. For example, the French parliament recently
prohibited wrongful life but not wrongful birth suits.
An ongoing court case before a Supreme Court in Australia is
being brought on behalf of three disabled people, whose ages
and complaints open many doors for litigation. The eldest, 20
years old, is disabled due to her mother contracting rubella
during pregnancy. The second, 2 years old, was born after a
failed vasectomy. The third, 17 months old, inherited a disorder
that screening could have detected.
The implications of this and other wrongful life cases around the
world are staggering — even without considering theological
objections and the background abortion debate. Merely some of
the questions they raise are:
Should the court system legally devalue the life of a disabled
person? An English court rejected a wrongful life case (McKay
v. Essex Area Health Authority, 1982) on the grounds that
recognizing the claim would "mean regarding the life of a
handicapped child as not only less valuable than the life of a
normal child, but so much less valuable that it was not worth
preserving."
Is it valid to equate a genetically produced disability with a
medical injury?
Should a lawyer representing a client be arguing that he or she
should not be alive?
Will huge settlements with the attendant rise in malpractice
insurance drive even more doctors out of obstetrics, an area of
medicine already experiencing severe shortages of care? In
France, for example, some doctors are refusing to offer ultra-
sound tests to avoid subsequent litigation.
Will doctors who remain in obstetrics advise discretionary
abortions in self-protection? Before the Supreme Court of
Canada, an accused doctor defended her decision not to "unduly
worry an expectant mother about an improbable risk and one for
which she [the doctor] would not advise therapeutic abortion."
(Arndt v. Smith, 1994)
If wrongful birth and life cases proliferate, will doctors advise
abortions even when risks are not probable?
The last quote is telling. Some wrongful birth/life cases spring
from just complaints against the medical profession. No
information should be withheld from expectant parents who have
a right to know the medical condition of their fetus. For one
thing, medical science now allows for the prenatal correction or
limitation of many defects.
The human cost of this new litigation is terrible. Parents publicly
tell a child that they wish he or she had never been born.
Disabled children may penalize loving parents who cared enough
to bear them, despite "flaws." And no one knows how many
healthy children will not be born because legally savvy doctors
urge parents to have discretionary abortions for fear of bringing a
"wrongful life" into the world.
Wendy McElroy is the editor of ifeminists.com. She is the author
and editor of many books and articles, including the forthcoming
anthology Liberty for Women: Freedom and Feminism in the
21st Century (Ivan R. Dee/Independent Institute, 2002). She
lives with her husband in Canada.
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